Ordinance making power of President and Governor

Published on 16 Jan 2025

Articles 123 and 213 deal with the ordinance-making power of the President and the Governor when the respective legislatures are not in session. This executive power is to be used to deal with unforeseen or urgent situations that demand immediate response from the government.These ordinances have the same power as legislation but are of temporary nature.

Features of ordinance

• Absence of legislative body: An ordinance should be enacted only when either of the legislative bodies is not in session It cannot be used as a parallel to legislation. 

• Subjects: The ordinance can only be passed over matters which are under the authority of Parliament or respective legislature. It cannot be used to revoke a fundamental right.

• Duration: The ordinance remains valid only for 6 weeks after the reassembly of the house within which the house shall decide upon the matter discussed in the ordinance.

• Reason for promulgation: An ordinance shall be invoked if the President is convinced that circumstances exist that necessitate immediate action from his part.

• Discretion: Ordinance making power is not discretionary in nature. The President and Governor can only make such a move with the aid and advice of the council of ministers.

Concerns regarding ordinance making power

• Increased frequency in usage: The provision was meant to be an emergency measure but has been misused to bypass the legislature which results in a high ordinance usage rate.

• Example: Between 1990 and 2000, around 196 ordinances were issued at the central level.

• Label as colourable legislation: Ordinance has turned out as a tool to achieve some goal which is difficult through the executive route and hence implemented through a shortcut for a short period of time.

• Repromulgation of ordinance: Once an ordinance expires, the same will be re-promulgated again without making a legislation upon the same to avoid discussions and criticism.

• Example: An ordinance related to land reforms in Bihar got re-promulgated and was in existence for nearly 7 years.

• Lack of deliberation: The invocation of ordinance in a hasty manner denies opportunity to have a discussion on the matter and to analyse their impact on the public.

• Example: The passage of Land Acquisition Ordinance in 2015 which favoured corporate interest escaped Parliamentary deliberation.

• Question separation of power: Ordinance has been labelled as a sign of interference of executive into the shoes of legislature and hence is a case of overstepping authority.

• Example: The Securities Law Amendment ordinance was promulgated three times. This questions the relevance of Parliament in passing legislation.

• Impact on federal structure: This happens when the governor promulgates ordinances that go against the state interest leading to conflicts between governor and state.

• Concentration of power: Ordinance offers more power to the elite leaders of the ruling government and enables them to garner more influence in policy making.

• Example: Increased usage of ordinances during Indira Gandhi’s rule indicates efforts to consolidate power.

Thus, ordinance route is an effective measure to handle contingency which got exemplified during the COVID times when the legislatures failed to hold sessions. But increased frequency of usage with the mere objective of bypassing deliberation shall not be tolerated. Effective checks shall be made to ensure the powers of the legislature are kept intact to preserve India’s democracy.

Tags:
Polity

Keywords:
Ordinance making power of President Ordinance making power of Governor DC Wadhwa case Krishna Kumar case RC Cooper case separation of power Ordinance Article 123 Article 213 colourable legislation Repromulgation

Syllabus:
General Studies Paper 2

Topics:
Parliament and State Legislatures